Criteria for Payment from Special Fund Explained

In finding there was insufficient evidence to determine if claimant was entitled to be paid workers’ compensation benefits from the Special Fund (for previously closed cases), the Third Department wrote:

“Worker’s Compensation Law § 25-a provides for the transfer of liability to the Special Fund ‘when an application to reopen a closed case is made more than seven years from the date of injury and more than three years after the last payment of compensation'” … .  “Advance payments that are made voluntarily, in recognition of an employer’s liability, are payments of compensation” for purposes of Workers’ Compensation Law § 25-a … .  Thus, even where the requisite time periods have elapsed, if a claimant has – during the relevant time period – received advance payment of benefits in the form of full wages for the performance of light or limited duty work, liability is not appropriately shifted due to those advance payments … .  Here, the record contains numerous progress reports from claimant’s chiropractor indicating that she has been working for the employer since November 2004 with restrictions. Inasmuch as the record does not contain an affidavit or testimony of claimant or any other evidence regarding whether claimant was performing light or limited duties and, if so, whether she received full wages, we find that the Board’s decision is not supported by substantial evidence and the matter must be remitted for further development of the record… . Matter of Capodagli…, 516177, 3rd Dept 9-19-13